Shrieves v. Morris

Replevin— Tille to Personal Property under Assignment of Mortgage. Money was lent, secured by a note and chattel mortgage, both of which ran to an employee of the lender. The note, nnindorsed, was always in the lender’s possession, and the mortgage was always held by him or by the employee. By the lender’s direction, the employee assigned the mortgage to another employee of the lender, the assignee giving to the assignor money supplied by the lender, to whom the assignor returned it. The assignment also was held by the lender, but was missing after the assignee left his employ. Held, that, if the transaction between the lender and his employees was a mere paper one, not under- ■ stood or intended to have any effect as between themselves, the assignee, or one who acquired by assignment only his right to the mortgaged property, could not maintain replevin for the property when in the lender’s possession.

Replevin of a piano. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, as follows. It appeared in evidence that one Currier and his wife, whose title was undisputed, executed a mortgage, under seal, of the 311 piano which was replevied to one McAvoy; and the plaintiff introduced in evidence an assignment of the mortgage, under seal, from McAvoy to one Barker, dated November 15, 1887, and an assignment of the same mortgage, also under seal, from Barker to the plaintiff, dated May 10, 1888. The assignments of the mortgage were in the usual form, and purported to assign the mortgage deed, the property thereby conveyed, and the note and claim thereby secured. The defendant at the time the mortgage was given, and at the time it was assigned to Barker, was carrying on the business of loaning money upon mortgages, and McAvoy and Barker were in his employ. The defendant made a loan of money to the mortgagors, and took therefor a promissory note payable to the order of McAvoy, which he still held. The mortgage was given to secure the payment of this note, which was never indorsed by McAvoy, nor delivered by him to Barber or by Barker to the plaintiff. Both McAvoy and the defendant were allowed to testify, against the objection of the plaintiff and subject to his exception, in reply to an inquiry as to what was done when the assignment was made from McAvoy to Barber, that the defendant directed McAvoy to make the assignment; that he handed to Barker seventy-five dollars of his own money and told him to give that to McAvoy; that Barker gave the money to McAvoy and received the assignment; and that McAvoy then returned the money to the defendant. The defendant testified, that, after the assignment to Barker, he caused the piano, which was then in Easton, to be brought to Boston; that it was delivered into his possession at his place of business, and remained there about three weeks, and was then moved to his dwelling-house and kept there until the plaintiff replevied it; and that the assignment from McAvoy to Barker was delivered into the defendant’s possession and put on file with other assignments, where it remained some time, and that he first missed it after Barker left his employ. The original mortgage was never delivered to Barber, but remained all the time in the possession of McAvoy or of the defendant. The judge, after calling the attention of the jury to the matters not in dispute, as before stated, charged them, among other things not excepted to, that if they were of the opinion that the transaction as between McAvoy, Barker, and the defendant was as the defendant said it was, then they might find it was a mere paper transaction, not understood or intended to have any effect as between themselves, and Barker would not acquire any right in the piano that would enable him to replevy it from the defendant. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.